Dove Flocking and Screening Co.

National Labor Relations Board - Board Decisions

Dec 26, 1963

145 N.L.R.B. 682 (N.L.R.B. 1963)

682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Israel Taub d/b/a Dove Flocking and Screening Co. and Israel
Taub d/b/a Dove Flocking and Screening Co., and Sanford
Embroidery Company, Inc. and Independent Ladies' Garment
Workers' Union , Ind. Cases Nos. 2-CA-9081 and 2-CA-9081-2.
December 26, 1963
DECISION AND ORDER
On August 1, 1963, Trial Examiner Paul Bisgyer issued his Inter-
mediate Report in the above-entitled proceeding, finding that Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Intermediate Report. There-
after, the General Counsel filed exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
1 By letter dated September 13, 1963 , the Association of Catholic Trade Unionists indi-
cated its support and adoption of the exceptions filed by the General Counsel.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard by Trial Examiner Paul Bisgyer during the period from
May 6 through 22, 1963, in New York, New York, on the amended consolidated
complaint of the General Counsel i and the separate answers of the Respondent
Israel Taub d/b/a Dove Flocking and Screening Co., herein interchangeably called
'The charge in Case No. 2-CA-9081 was filed by the Charging Party on January 22,
1963 , and was served on the Respondent Dove on January 23, 1963. As this charge and
the amended complaint allege unfair labor practices occurring not more than 6 months
prior to the filing and service of a copy of the charge as required by Section 10(b) of the
National Labor Relations Act, the Respondent Dove 's motion to dismiss the charge and
the amended complaint under that provision is denied The charge in Case No. 2-CA-
9081-2 was filed on March 21, 1963 , and was served on the Respondents Dove and Sanford
on March 22 , 1962 The Respondents similarly moved at the hearing to dismiss that
charge and the allegations of the amended complaint affecting the Respondent Sanford.
For all intents and purposes , that charge can be viewed as an amendment of the earlier
charge and was designed to bring into the proceeding at least for remedial purposes the
Respondent Sanford , which I later find occupies a single employer relationship with Dove.
In these circumstances , I find the Respondents ' motions to be without merit and they are
hereby denied . Indeed, it appears that the right to litigate the question of a person's
derivative liability is not at all dependent upon the filing of an unfair labor practice charge
against him . N L R.B. v C C.C . Associates , Inc, 306 F. 2d 534 (C A. 2)
145 NLRB No. 63.
DOVE FLOCKING AND SCREENING CO. 683
Dove or Taub, and the Respondent Sanford Embroidery Company, Inc., herein
called Sanford. in substance, the amended complaint alleges that the Respondents,
constituting a single, integrated business enterprise, violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, by Dove's threats to its
employees on or about July 25, 1962, to discharge them and close the plant be-
cause of their membership in, and strike activities on behalf of, Local 91, Interna-
tional Ladies' Garment Workers' Union, AFL-CIO, herein called Local 91; by
Dove's offer of a wage increase and reimbursement for wages lost while on strike
to induce its employees to abandon their union membership and strike activities;
by its discharge of virtually all of its employees on or about July 25 and its sub-
sequent removal of its production operations to Sanford's plant in North Carolina,
because the employees tailed to heed its warnings; and by rejecting the employees'
unconditional application for reinstatement made in October 1962, individually and
on their behalf by the Charging Party, Independent Ladies' Garment Workers'
Union, Ind., herein called the Independent. In their answers the Respondents
deny the commission of any unfair labor practices. Additionally, Dove alleges
as an affirmative defense that the issuance of the complaint was barred by the
6-month limitation period prescribed in Section 10(b) of the Act. At the close of
the hearing, after all the evidence was received, the parties argued their positions
orally. Thereafter, only the General Counsel availed himself of the opportunity
and filed a brief which was given careful consideration. The Respondents' motions
to dismiss the amended complaint on the ground that the General Counsel failed
to prove his case, on which I reserved decision at the hearing, are now granted in
accordance with my findings and conclusions set forth below.
Upon the entire record, and from my observation of the witnesses, I make the
following-
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENTS
Respondent Israel Taub, operating under the trade name of "Dove Flocking and
Screening Co.," is engaged in the business of furnishing embroidery, sample, and
related services to manufacturers of men's sport shirts in New York. During the
year ending December 31, 1962, Dove performed such services valued in excess
of $50,000 for firms located outside of that State.
Since its incorporation in North Carolina, in August 1962, the Respondent Sanford,
pursuant to an arrangement with Dove, has been engaged in performing for Dove's
customers embroidery services which Dove had theretofore performed itself in
its New York plant. Sanford's operations involve interstate shipments of goods to
and from Dove's customers.
For the reasons later discussed in this report, I find that both Respondents, en-
gaged as they are in an integrated enterprise, constitute a single employer within the
meaning of the Act. I further find that they are engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
It is not contested, and I find, that Local 91 is a labor organization within the
meaning of Section 2(5) of the Act.
The record establishes that the Independent is an organization which was formed
by Dove's employees with the assistance of the Association of Catholic Trade
Unionists, herein called ACTU, for the purpose of bargaining with the Respond-
ents concerning wages, hours, and other terms and conditions of employment and
the reinstatement of Dove's striking employees. It has an elected president and
vice president. In view of the foregoing, I find, contrary to the Respondents' con-
tention, that the Independent is also a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
The principal question here presented is whether Dove discharged its employees,
terminated its New York operations, and relocated its plant in North Carolina, for
business reasons or because its employees refused to abandon their Local 91 mem-
bership and strike activities, as Dove had allegedly threatened to do. Essentially,
this is a factual question with the employees generally lined up on one side giving
their version of the events which is seriously contradicted in critcal respects by the
Respondents ' witnesses . Of more than passing interest is the fact that the charges
herein were not filed by Local 91 , but by the Independent , its successor , almost
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6 months to the date after Dove allegedly threatened and effected the discharges on
July 25, 1962. Evidence of events antedating the 6-month limitation period pro-
vided in Section 10(b) of the Act., i.e., July 23, 1962, was, however, received
over the Respondents' objection solely as background to shed light on the events
that followed? A subsidiary question is also raised as to the relationship between
Dove and Sanford. We turn to the evidence.
B. The evidence
1. Background of events leading up to the employees' selection of Local 91
as their representative and the strike
On Thursday morning, July 19, 1962,3 Dove's production employees, approxi-
mately 50 in number, protested Dove's failure to give them a wage increase they
were accustomed to receive in prior years by refusing to start up their machines.
Under instructions from Israel Taub, Dove's owner, Umberto Modeiro 4 told the
employees to resume work and that the matter of raises would be considered later
in the day. Thereupon, the employees began working. In the afternoon, Modeiro,
acting as Taub's interpreter, explained to the employees over the loudspeaker that
Taub had experienced a decline in business the past year; that he was not as busy
as he usually was that time of the year; that he was accepting work at lower
prices; and that, although he could not afford it, he was willing to give employees a
token raise of $1 a week. Obviously not satisfied with this offer, a number of the
employees at the close of the day signed a paper circulated among themselves,
manifesting an interest in joining a union. Thereafter, a group of about 12 girls
went to Local 91 where they met Raymond Orsini, its labor representative, and
other organizers and requested the union to represent them. Orsini advised them
to return the next day to enable him in the meantime to discuss the matter with
Harry Greenberg, Local 91's manager.
Still disgruntled over the nominal raise offered them, the employees returned to
work the next day, Friday, June 20. Near closing time, Taub summoned the
employees to his office in groups of about 8 to 10. According to the combined
testimony of employee witnesses for the General Counsel,5 Taub, again speaking
through Modeiro 6 as interpreter, told them that he was aware of their union
2Local Lodge No. 1424, International Association of Machinists, AFL-CIO, etc (Bryan
Manufacturing Co.) v. N.L.R B., 362 U.S. 411, 416
a Unless otherwise indicated , all dates refer to 1962
d Dove's factory employees were principally Puerto Ricans, a great many of whom spoke
and understood Spanish only. Since neither Taub nor Abraham Shenker, Dove's produc-
tion manager before Sanford was formed spoke Spanish, Modeiro, whose job generally was
to set up and repair machines in the factory, and Leiser Schwartz, who worked in the
appliqud department, acted as translators for them at different times The General
Counsel contends that Modeiro was a supervisory employee within the meaning of the
Act In view of the findings I later make with respect to statements allegedly made by
Modeiro in his individual capacity and not as translator for Taub or Shenker, it is un-
necessary to resolve the supervisory issue.
5 The above recital is the sum and substance of the combined testimony given by Jesusa
Pomales, Amelia Velez, Daniella Sandoz, Estrella Morales, and Carmen Cintron. Out of
the 8 or 10 in her group Pomales could only remember that Sandoz was present, although
Sandoz could only remember the names of 2 employees but not Pomales The other girls
were unable to name any employees in their groups
6 Amelia Velez, president of the Independent, gave further testimony that on two earlier
occasions on Friday, July 20, Modeiro came to her machine and asked her whether it was
true that some girls had gone to the Union ; told her that someone had so infoi med Taub,
asked her who had the list that was taken to the Union ; and warned her that Taub
opposed the unionization of his plant and that she and the employees would lose their
jobs if they wanted a union On cross-examination, Velez did not remember telling the
Board agent when she was interviewed that Modeiro told her that someone had informed
Taub about the girl's interest in the Union. She also adamantly insisted that she signed
the paper favoring a union on July 19 in the downstairs hall of the building in which
Dove's plant was located. However, her pretrial affidavit given to a Board agent indicates
otherwise that the "paper was circulated during working hours and more than 30 girls,
including myself , signed " In addition, Velez testified that on July 23 Modeiro met her in
the street not far from the plant and told her she had two faces. Admittedly, she did not
previously tell a Board agent about this incident She also testified that while on the
picket line, Modeiro told her and the other girls to return to work or lose their jobs. No
other girl testified to such remarks. As later discussed, I find Velez' testimony not im-
pressive and, accordingly , do not credit it.
DOVE FLOCKING AND SCREENING CO. 685
interest and that a group had gone to the union; that they did not understand what
a union meant; that to become a member they would have to pay for the book"
and regular dues; that their interest or membership in the union would cause them
to lose certain privileges enjoyed by them; and that he would close or move the
plant rather than have a union or sign a contract with it. Some of the employees
also testified that Taub explained his inability to offer them more than a nominal
increase of $1 due to a slack in work and stated that if business improved later on
he would give them an additional raise. They further testified that he informed
them that he was going to lay off a number of employees that afternoon because
of insufficient work, and not because of their union interest, but that they should
call the office Monday or Tuesday to see if work he had been expecting had come
in in the meantime.
Taub unequivocally denied mentioning the union to his employees on this occasion,
much less making any of the reported threats. In fact, Taub testified, he first learned
of Local 91's appearance at the plant the following Monday, July 23, when the
strike began. According to Taub, he summoned employees to his office on July 20
in order to appease them for not receiving a more generous raise than that offered
them the day before and to advise them of his intention to remove another source
of discontent in Dove's practice of selecting the same employees for layoff by
replacing it with a rotation system. Specifically, Taub testified that he told the
employees that he could not afford more than a $1 raise; that he was faced with
severe competition and was experiencing a decline in business; and that, in fact,
this was the first July that the plant was not busy. Taub also testified that he told
the employees that the existing shortage of work necessitated laying off several girls
that afternoon; that he would recall the laid-off employees when a shipment of
goods he was expecting the following week arrived; and that they should call the
plant Monday to find out whether work was available. To satisfy the complaints
concerning the selection for layoff, Taub informed the girls that those not previously
laid off would be selected Although employee witnesses denied that Taub conveyed
the latter information to them, the asserted rotation principle was actually followed
in the layoff that afternoon.
Production Manager Shenker corroborated the substance of Taub's testimony
For the reasons, later discussed, I credit Taub's and Shenker's account of the state-
ments Taub made to the employees.
Before leaving the plant that day, 13 employees were given layoff notices.7 No
contention is, nor can it validly be, made that the layoff was discriminatory. Be-
cause Taub thereafter received notification on July 22 from one of his customers
that goods to be embroidered were in transit to Dove, he promptly sent telegrams
to the laid-off employees, notifying five to report to work on Tuesday, July 24, and
eight on Wednesday.
As previously arranged, a group of girls went to Local 91's offices Friday evening.
There Labor Representative Orsini informed them of the union's decision to represent
them and that it was prepared to go on strike on Monday, July 23, to unionize the
plant.
2. The strike; Local 91's contract demands
On Monday morning, July 23, almost all of the factory employees went on strike
and began picketing with Local 91 signs. Picketing continued under Local 91's
direction for 3 months until that union was supplanted by the Independent under
circumstances hereinafter described. The Independent picketed for approximately
another 2 weeks when it ceased this activity.
From the very inception of the strike, it became quite evident that the principal
object of the strike was to force Dove to sign Local 91's standard area contract.
This was dramatically expressed by the strikers' persistent chanting on the picket line
in English and Spanish "no contract, no work." 8 Indeed, Orsini, who was in charge
of strike activities, conceded that at no time during Local 91's incumbency would
the strikers have returned to work without a contract.
Although Local 91 never filed a charge against the Respondents alleging an
unlawful refusal to bargain, evidence concerning discussions between Taub and
Labor Representative Orsini respecting Local 91's contract demands has significant
relevance to the question of Taub's motivation in terminating his New York pro-
7 The record shows that Carmen Cintron was not temporarily laid off. There is no
reason to disbelieve Taub's testimony that she quit. In any event, whatever the nature of
her layoff, unlawful discrimination was never charged.
8 Amelia Velez was the only striking employees who incredibly testified that she did not
remember whether the girls stated or sang aloud "no contract, no work" on the picket line.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction operations and relocating them in North Carolina. Except for unimportant
variances between Taub's testimony and that of Orsini, a rebuttal witness called by
the General Counsel, which do not affect the basic issues herem,9 their testimony
establishes the following facts: On the first day of the strike, Orsini transmitted
directly or indirectly a copy of Local 91's standard area agreement to Taub. There-
af_er, Taub carefully studied its provisions and discussed them with his accountant,
his production manager, Shenker, and his salesman, Jack Melker, and concluded
that the monetary demands made it impossible for him to operate his plant profitably
and remain in business. The next day, July 24,10 Taub engaged Orsini in a con-
versation near the plant and reviewed the provisions with him. He told Orsini
that he could meet the wage scales in the contract and even give the employees
a $3 weekly increase requested by Orsini since the contract's wage rates were for
the most part below what he was paying However, Taub strenuously protested
that he could not possibly obligate himself to pay the other monetary demands or
curtail his workweek from 40 to 35 hours as the contract provided and yet survive
in business. He pointed out in detail what the required contributions to Local 91's
health, welfare, and retirement funds, based on a fixed percentage of his payroll and
outside contract work, and the 35-hour week meant in financial terms, and how
these provisions reduced his business to an unprofitable enterprise Taub also re-
ferred to the Textile Union's contracts with other embroidery firms which permitted
a 40-hour week. Orsini's response was that the foregoing terms were "must" pro-
visions in the contract with respect to which there was no room for bargaining and
that if Taub's employees worked in excess of 35 hours a week he would be obligated
to pay them time and a half. Significantly, it is indisputed that Orsini's statements
regarding the nonnegotiable character of the foregoing union demands reflected
Local 91's undeviating policy. However, to make the union's demands more palat-
able, Orsini pointed out to Taub that he would be spared the vacation expense since
the union would take care of that matter, that the union's efficiency experts would
be available to him to improve his operations; and that he (Orsini) would try to
secure more customers for Taub.ii Taub, nevertheless, found these suggestions
inadequate and expressed the view that to accept a contract with the provisions in
question would force him to shut down or move his plant
At various times after their initial conversation, when Taub and Orsini had occa-
sion to meet, they exchanged brief comments respecting their contract views with
neither one indicating an inclination to alter his position Although Orsini char-
acterized their meetings as "hit-and-run" affairs,12 it is clear that they were at least
sufficient to demonstrate that Local 91 insisted on Taub's acceptance of its contract
demands discussed above, without allowing for any bargaining concerning these
matters 13 In fact, Orsini frankly admitted that Taub rejected his invitation to
come to Local 91's office to discuss the proposed contract because no useful purpose
would be served as the demands in question were not negotiable Significantly,
°For example, Taub testified that on Monday, July 23, Orsini of an employee in his
p1ecenee gave him i eoiiv of Local 91's niopo,ed contract Orsini, on the other hand,
testified that Taub obtained a copy of the proposed contract from a sti111cr who had
requested it to ',how to his employer
10Taub so testified while Orsini insisted that the initial discussions occurred the latter
part of the fast week or the beginning of the following week Although it is not par-
ticularly significant whose testimony is moie accurate insofar as the question of motiva-
tion underlying the discontinuance of Dove's New Toil: production operations is cou-
ceined, since under either version the discontinuance occurred atti"r these discussions, the
tune element has relevance is it relates to Paub's asserted ieterence to these discussions
in his talks with the strikers on July 2a Accordingly considenrig Taub's and Orsini',,
entire testinioin on the subject the pressuiec on Taub to complete his customers' work at
that time, the disorders on the picket line resulting in mass arrests during the end of thi'
week, and Taub's denionsti ated interest in ascertaining Local 91's contract demands, 1 ant
persuaded that it is moie likely that the Taub-Orsini coniersatrons began on July 24, a,
Taub testified
"Taub also testified that Orsini su_gested that he would refrain from enforcing the
contract's piojnbition against using night shifts Orsini, however, contiadicted this
testinionv
r' I have no doubt that these discussions were not negotiations in the true sense of the
term Indeed, Taub conceded that much in his pretrial affidavit However, as indicated
above, these discussions have relevance as to Taub's motive for moving his production
facilities to North Carolina
13Probabiy, this inflexible attitude explains Local 91's failure to file refusal-to-bargain
charges against 1)oye
DOVE FLOCKING AND SCREENING CO. 687
Orsini , also conceded that he turned down Taub's reciprocal invitation to confer
in his office.
3. Taub's and Shenker's efforts on July 25 to induce the striking employees
to return to work
Crucial to the General Counsel's entire case is the evidence concerning the state-
ments Taub and Shenker purportedly made to the employees on July 25. Except
for certain rejected testimony relating to two other incidents, these statements are
the only evidence of unlawful interference, restraint, coercion, and discharge of
employees and of discriminatory motivation underlying the relocation of Dove's
plant adduced by the General Counsel, which occurred within the statutory 6-month
limitation period.
On that Wednesday morning, Labor Representative Orsini made arrangements
with Taub for the striking employees to enter the plant to collect wages they had
earned the preceding week. According to Taub, in the course of this conversation
there were further fruitless discussions of Local 91's contract demands which prompted
him to ask Orsini whether he minded if he (Taub) offered the girls the $3 raise
he was willing to give the union. Taub testified that Orsini replied that he had no
objection but thought that Taub would be wasting his time as the girls would un-
doubtedly reject the raise. Orsini, on the other hand, denied that 1 aub asked him
for permission to make the offer.
In view of Local 91's resort to economic pressure to force Dove to accept its
proposed standard area contract, I find it difficult to believe that Orsini would consent
to Taub's offering the striking employees a raise which could effectively induce
the employees to return to work and undermine Local 91's efforts to secure acceptance
of all its contract demands. Accordingly, I do not credit Taub's testimony in this
respect.
Pursuant to the arrangement between Taub and Orsini, the striking employees
entered the plant in small groups. Upon receiving their pay, however, they were
ushered into Taub's private office in groups of 7 or 8 or less where Taub spoke to
them with Shenker sometimes contributing a few remarks. There is no question
that Taub's purpose was to secure the employees' return to work so that he could
resume normal operations and complete customers' work he was under pressure to
deliver.
The testimony of employee-witnesses concerning what transpired at these meetings
is seriously in conflict with that given by Taub and Shenker.'' According to Jesusa
Pomales, Taub, holding a book in his hand, told her group that if he paid them the
"prices" therein provided (apparently referring to Local 91's contract wage rates)
he would come out a winner but that Taub did not reply when she injected the
question why didn't he therefore sign the contract. Pomales further testified that
Shenker, after speaking privately to employee Daniella Sandoz, addressed all the
employees, offered them a $3 raise and the 3 days' pay they had lost as a result of
the strike, and told them to forget the strike and return to work the following day
(Thursday, July 26). She also quoted Shenker as saying that those who did not do
so were "automatically discharged from this day on, Wednesday, the 25th" 15 and
that the company was not going to sign any agreement.
On cross-examination, Pomales, who insisted that Shenker expressly used the
phrase "automatically discharged," could not find it in the pretrial affidavit she
had given to a Board agent but explained that it was implied in the word "fired"
which appeared in her affidavit. She further testified that she did not remember tell-
ing Orsini or any other union representative that the employees were automatically
discharged, although "we" informed Orsini about the offer of a $3 raise. When
prompted by a question asked by counsel for Dove as to whether Taub said any-
thing about moving the plant to the South-a matter not mentioned in her direct
examination-she answered affirmatively. Pomales also testified that, although
she recorded in a little book everything that she heard at the meeting because it
14 Umberto Modeiro and Leiser Schwartz served as interpreters at different meetings,
while on other occasions where the employees spoke and understood English, no inter-
preter was used
15As later discussed, the phrase "automatically discharged" was also used in the testi-
mony of her daughter, Carmen Cintron, who was part of another group Cintron admitted
that before the hearing she, her mother, and Ana Guzman, Pomales' daughter-in-law, had
discussed among themselves many times what Taub had told each of them at these meet-
ings Amelia Velez also gave testimony that Modeiro, as Taub's interpreter, told her
group they were "automatically fired " She conceded, however, that when interviewed by
a Board agent, she did not inform him of this quoted remark
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was important, she did not know where the book was, or whether she had ever
shown it to Orsini or a Board agent. In addition, she adnutted that she did not
note her discharge in the little book and did not remember whether she had recorded
Shenker's offer to reimburse the employees for the 3 days they had lost while on
strike. Although agreeing that Taub asked her to read from Local 91's contract,
Pomales denied that Taub referred during his talk to the union's contract demands,
such as contributions to the health and welfare fund and the 35-hour week, or to
his discussions with Orsini. She also was unable to remember whether or not
Shenker said that, if the employees would not do the work, he would have to find
someone else to do it.
Sandoz, who was present in Pomales' group, testified that Taub 16 told the em-
ployees that he was going to give them a $3 raise and the wages lost while on
strike, and that they should forget about the union which he did not want in his
plant. She further testified that Taub asked them to return to work the next day,
warning them that, if they did not, they would be fired and he would close the
factory and move elsewhere. On cross-examination, Sandoz testified that Shenker
repeated Taub's remarks. She further added to her direct testimony that Taub
stated that the union was no good and would bring the employees trouble and would
cause him to close the factory, and she repeated his warning that he would close
and move his factory. However, in her pretrial affidavit given to a Board agent
in February 1963, Sandoz stated that nothing was said on that occasion about mov-
ing the factory. Although confronted with this statement, the witness tenaciously
insisted that Taub did not say he would move the factory.17 Further along in her
testimony given during her cross-examination Sandoz testified that Taub told em-
ployees to forget about the Union because he was not going to sign any contract.
Sandoz also admitted that Taub held a pamphlet in his hand while he was speak-
ing but testified that she did not understand what he was saying as she was then
talking to two employees. In another place in her testimony she asserted that she
could not understand what Taub was saying because the employees were talking
and she remained silent. However, in her pretrial affidavit she stated that Taub
held up a union pamphlet 18 and asked the employees whether they knew what
i' was and that they answered that they did. In explanation, the witness testified
that it was the other employees who replied affirmatively but that she did not know
what Taub was talking about at that time. She also denied that Taub told them
that he had offered their union representative the $3 raise or that she remembered
Taub referring to pension and welfare benefits while he was holding the pamphlet
in his hand, but conceded that Taub had said things in English which she did not
understand.19
Carmen Cintron, Pomales' daughter, related her experience on July 25 when
Taub spoke to her and Ana Guzman, Pomales' daughter-in-law. She testified that
Taub, speaking in English, informed them that he could not afford a union in his
plant and that if they returned to work the next day he would give them a $3 raise
and reimburse them for the time lost while on strike but that if they did not return
they would be "automatically discharged " On cross-examination, Cintron testi-
fied that, although Taub spoke for about 5 minutes, she could not remember every-
thing he said. She also testified that she was unable to recall whether or not Taub
had a book in his hand at the time. She further testified that after she and Guzman
left Taub's office they informed Labor Representative Orsini that Taub stated that
they were automatically fired if they failed to return to work, although they did
not advise Orsini about Taub's offer of a $3 raise. Later on during her cross-
examination she testified that she told Orsini everything that happened in Taub's
office.
1e According to Pomales, Modeiro served as translator. Sandoz testified that she did
not know whether Modeiro was present and that Leiser Schwartz translated for the benefit
of Mrs. Roman, an employee who did not understand English.
17 During her cross-examination, Sandoz was also positive that Taub told the em-
ployees that they were fired and that she expressly used the Spanish word "despedida,"
which means "fired," in her pretrial affidavit which was drafted in Spanish . However,
that term was not used there, only Taub's quoted statement that he did not want the
employees any more
19 Sandoz described the pamphlet as blue, although it seems from the entire record that
it was Local 91's standard area contract which had a yellow cover. Sandoz also testified
that she did not see whether that pamphlet was a union pamphlet but her pretrial
affidavit states that she "saw it was of the Union Local 91."
19 Although Sandoz testified that Taub offered to pay employees for time on the picket
line, her pretrial affidavit does not mention it.
DOVE FLOCKING AND SCREENING CO. 689
Amelia Velez, who filed the unfair labor practice charges here as president of the
Independent, gave direct testimony substantially similar to that given by other em-
ployee witnesses. Thus, she related that Taub, speaking through Modeiro to her
group of employees whose names she did not recall, told them to forget about the
union; that he would give them a $3 raise and pay them for the time lost while
on strike if they came back to work; and that if they did not do so they would be
fired. Velez also testified that Shenker repeated Taub's remarks. During her
cross-examination, Velez testified at one point that Modeiro, as interpreter, warned
that all those who did not return to work the following day were "automatically
fired." The witness conceded, however, that she did not tell the Board agent when
interviewed about the quoted remark, and that she did not remember whether she
had informed Orsini or any other union representative that she was fired. She also
testified that she did not remember Taub referring to any conversation he had with
Orsini or that Taub had a yellow book (Local 91's area contract) in his hand when
addressing the group, although she remembered that Taub called the union a
racket 2°
According to Estrella Morales, Taub offered the employees a $3 raise and reim-
bursement for the time lost while on strike and requested them to return to work
the next day or "remain fired " She further testified that the employees declined
the offer to return and Taub responded that they could do as they pleased but that
he was not going to sign up with the union but would rather move the plant. Under
cross-examination, she admitted that she did not tell Orsini or any other union
representative that she was fired, although she thought it was important to do so
and actually had informed Orsini the previous Friday about her then temporary
layoff. Morales also denied that Taub gave the employees a reason for refusing
to sign Local 91's contract, but stated that the union was not good for them 21
Haydee Lamb testified that Taub directly addressed her group in English. Ac-
cording to her, Taub asked the girls to return to work; offered them a $3 raise and
the wages they lost while on the picket line; and warned them that if they did
not report for work they would be fired because he was not going to sign up with
any union and that before he would do so he would close the factory. In answer
to Taub's remarks, Lamb testified that she and the other girls stated that they would
not return unless Taub signed up with the union. On cross-examination, Lamb
admitted that she did not inform the Board agent when she was interviewed and
executed an affidavit on April 18, 1963, that Taub had said that before he would
sign with the union he would close the factory. She explained that at that time
she had forgotten that statement but thereafter recalled it. She also testified that
she did not bring Taub's remarks to the attention of any union representative be-
cause she did not believe that they were important She further denied seeing a
yellow covered book (Local 91's standard contract) in Taub's hand or that Taub
gave a reason why he would not sign a contract with the Union.22
20 Velez did not impress me as a candid or reliable witness, relying many times in her
answers on an inability to remember or "maybe" with respect to matters it can reasonably
be assumed she had personal knowledge She also was the only witness who testified that
she did not remember whether the girls sang or stated "no contract, no work" while
picketing. The undisputed evidence establishes that such chanting persistently occurred on
the picket line. Moreover, as later discussed , Velez induced Estrella Morales to sign the
document authorizing the Independent to represent the employees and the document offer-
ing to return to work, although Velez was undoubtedly aware that Morales had permanent
employment elsewhere and was no longer interested in working for Dove
zi Morales' reliability as a witness is impugned by the fact, among others, that, although
she had previously secured permanent employment elsewhere and was not interested in re-
turning to work for Dove, she had signed on October 6, 1962, General Counsel's Exhibit
No. 8 designating the Independent as her bargaining representative and General Counsel's
Exhibit No. 7-B dated October 17, 1962, unconditionally applying for reinstatement.
Morales testified that she signed these documents in order to cooperate with her friends
whom she did not want to sustain a loss and did so at the insistence of Velez who pre-
sented her with the reasons.
"Just as I hereafter attach no credence to Lamb's testimony concerning Taub's alleged
coercive remarks on July 25, so am I not impressed with her testimony regarding similar
threats and other antiunion statements Taub allegedly made to her on July 24. Lamb
conceded that her pretrial affidavit stating that the alleged conversation occurred on
July 23 was erroneous She further testified that the first time she mentioned Taub's
July 24 remarks to anyone was in April 1963, when she was interviewed by a Board agent
I credit Taub's denial that he had such a conversation with Lamb on either day.
734-070-64-vol. 14 5-4 5
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In contradiction of the testimony of employee witnesses, Taub gave the follow-
ing account of the July 25 episode, which Shenker, who was present during at least
most of them, corroborated in major respects: After the employees collected their
pay that day, they were called into Taub's office in small groups. In anticipation
of such meetings, Taub prepared a short talk which he delivered to the employees.
He informed them of the substance of his discussions with Orsini respecting Local
91's contract demands and that he was unable to make any headway with him.
Referring to a booklet embodying Local 91's standard area contract, Taub told the
employees that he could meet the union's wage rates because they were lower than
what he was paying 23 He also stated that he was willing to grant the union's
requested $3 raise, but that he could not afford Local 91's other demands, such as
the contributions to the health, welfare, and retirement funds and the 35-hour week.
Taub pointed out that these demands would cost him $40,000 to $50,000 a year and
would make it virtually impossible for him to operate profitably and remain in
business. He further informed the employees that business was not good and if
he accepted the contract with all its terms he would be forced out of business. He
therefore asked the employees to speak to the union and try to convince it to accept
the $3 raise. Concerning his offer to reimburse employees for the time lost while
on strike, Taub testified that the matter arose when one of the employees raised
the question and that, in reply, he assured her that the amount involved was too
inconsequential to prevent agreement.
Finally, Taub related, he requested the employees to report to work the next day
because his customers' goods were tied up and he had to finish and ship them out
and stated that if they did not return to work he would be compelled to utilize
the services of outside contractors in New Jersey. He further testified that the
employees' response to his appeals to return was negative with one or two girls in
each group voicing the view that the employees would return only if Taub signed
Local 91's contract.24 Taub also specifically denied that he threatened to close' or
move his plant or to discharge his employees in reprisal for their union member-
ship or strike activities or because they refused to return to work.
In many significant respects, the testimony of Labor Representative Orsini, whom
the General Counsel called in rebuttal and describes in his brief as an "honest
witness," confirms Taub's version of his remarks on July 25, although in other re-
spects it supports the testimony of employee witnesses Orsini testified that im-
mediately after their meeting with Taub, the employees told him about Taub's
money offers; that Taub expressed the view that he could not afford Local 91's
contract terms and could not stay in business if he signed that contract; and that
Taub said that either they return to work or they would be considered fired or that
they were no longer his employees 25 In subsequent testimony elicited for the pur-
pose of clarification, Orsini testified that the girls on that occasion reported to him
that they were offered increases and other benefits 26 providing they abandoned the
strike and returned to work; that the girls answered Taub that unless he signed
Local 91's contract they would never return; and that Taub also informed them
that he may move out of town, or to the South because he could not afford the
agreement since it provided for a 35-hour week and "fringe benefits, health and
welfare funds" costing about 20 percent to 25 percent, which his business could not
pay, and contained a possible prohibition against working two shifts. Moreover,
Orsini added that the employees told him that they "considered themselves all fired."
Bearing in mind the personal interest of the employee and Respondent witnesses
in the outcome of this litigation and the not unnatural tendency to color and exag-
gerate their testimony, I find from my careful appraisal of all the testimony, the
probabilities of the case, and observation of the demeanor of the witnesses that
Taub's and Shenker's testimony concerning the July 25 discussions in Taub's office
more closely approximates the truth than that given by the employees. As indicated
23 Pomales' testimony confirms Taub's in this respect when, according to her, she chal-
lenged Taub that if it were so, why didn't he sign the Union's contract. However, it is
highly improbable, as Pomales testified, that Taub did not answer her. Rather Taub's
testimony, recited above, reasonably seems to be the likely response he would make.
24 As indicated previously, employee Lamb also testified that the employees in her group
told Taub that they would not return to work without a signed union contract.
26 Although Orisini testified that when he saw Taub later in the street he warned him
that he had no right to "make offers or anything else like that to the people," and would
get into trouble for committing unfair labor practices, no unfair labor practice charge was
ever filed by Local 91 against the Respondent
26 According to the testimony of employee witnesses, the only other inducement offered
them was reimbursement for the 3 days' pay lost while on strike.
DOVE FLOCKING AND SCREENING CO . 691
above, Orsini's testimony in major respects supports Taub's account of his explana-
tion to employees of Local 91's inflexible contract demands and his inability to meet
them, and contradicts the employees' almost uniform denial or lack of recollection
that such statements were made, despite the fact that several employees conceded
that at the time of his talk, Taub held a booklet embodying Local 91's contract in
his hand. In these circumstances I have no doubt that Taub, anxious to have his
employees return to work, made it very plain to them why he could not sign the
agreement and remain in business. Whether innocently or not the employees
inferred from these statements that Taub discharged them 27 and threatened to
close or move the plant because of his hostility to the union and their refusal to
abandon their strike, I do not believe that Taub actually did so.
Accordingly, I credit Taub's and Shenker's testimony regarding the July 25
meeting with the employees.28
4. Termination of Dove's New York production operations; establishment of
the Sanford, North Carolina, plant
There is no question that the employees were determined not to return to work
unless Taub signed Local 91's standard area contract which Taub regarded imposed
a prohibitive cost on operating his business. The record also shows that Taub
was hard pressed to complete his customers' work in his plant. His effort to secure
from employment agencies and other sources employees willing to cross the picket
line proved futile. Indeed, Labor Representative Orsini admitted that incidents of
violence, which he regretted, occurred on the picket line when Taub tried to bring
"scabs" into the plant. Truck deliveries were also halted as a result of the strike
activities at the plant. To perform his customers' work, Taub was therefore obliged
to utilize the services of independent contractors. This practice did not escape Orsini
who testified that he attempted to locate the contractors and succeeded in persuading
some shops in Brooklyn to return the work to Taub unfinished.
Confronted with the foregoing situation, Taub testified, he intensified his efforts
to find a suitable place in the South where he could move his factory, as he had
previously decided to do, although no specified time had then been determined for
such a move. According to Taub,29 in 1961 a competitor appeared in the South
where most of the plants of sport shirt manufacturers and his customers are
situated. Originally he discounted the competitor's impact on his business. How-
ever, it soon became apparent that his competitor was actually making more serious
inroads on his customers than he had anticipated by giving them faster service and
a better price. Consequently, about the end of 1961 or beginning of 1962, he
determined to move his plant to the South and began making inquiries for a location
which would be close to most of his customers, have good transportation facilities
and a labor force, and where the State or community had a good employee training
program. Such a location which satisfied his needs Taub found in Sanford, North
Carolina, a few days before August 10, where an industrial building was under
construction. Accordingly, Taub agreed with the landlord to lease those premises
to house his plant.
27 It is noted that, although employee witnesses asserted that they were discharged on
July 25, they did not apply immediately for State unemployment insurance benefits as
discharged employees, but waited at least 7 weeks after the commencement of the strike
before filing as employees out of work because of a labor dispute, as required by State law
in such a situation No testimony, however, was adduced to show that employees re-
frained from filing sooner because they believed or were advised that as strikers they were
ineligible to file, despite the alleged discharge, whether or not this was so under State law.
In this connection, it is also noted that Orsini testified that in the normal course of events
he informs employees to file for unemployment insurance benefits upon being fired
28 As I find that Taub and Shenker are more reliable witnesses than employee witnesses,
I also credit their testimony regarding the background events on July 20, recited earlier in
my Intermediate Report. I might add that I find it extremely difficult to understand, if
the facts were those asserted by employee witnesses, why Local 91 never filed an unfair
labor practice charge against Dove or why the Independent deferred filing its initial
charge until virtually 6 months to the day after the alleged commission of the unfair
labor practices and then only after it had filed a representation petition with the Board
which was dismissed by the Regional Director and after the dismissal was sustained on
appeal to the Board, as hereinafter discussed
28 Taub was corroborated in material respects by Shenker and Jack Melker, Taub's
salesman.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Taub conceded that initially he intended to transfer his production facilities from-
New York to Sanford and operate them under Shenker' s management as an integral
part of Dove. However, because of the responsibility imposed on Shenker, who is
also Taub's brother-in-law, and the hardship to him and his family resulting from
the move, Shenker had misgivings about going along with that arrangement unless
he was given a controlling interest in the production end of the business. Accord-
ingly, Taub and Shenker orally agreed to form a corporation in which Shenker
would invest $7,500 and have a 75 percent interest in the corporation and Taub
would invest $2,500 and have a 25 percent interest. Pursuant to this agreement,
Sanford Embroidery Company, Inc., was incorporated in North Carolina on or about
August 22 and the agreed percentage of stock was allotted to each.
Under the above arrangement, Dove maintains its New York establishment where
it only makes samples and solicits business.30 Sanford, on the other hand, performs
exclusively all the production work for Dove's customers who ship their goods
directly to Sanford which, in turn, delivers the finished product directly to the
customers. Dove, on its part, does not use any other contractor to do this work.
Only Dove does the billing and makes the necessary adjustments with customers.
Sanford is compensated by Dove for its services on a cost-plus-l0-percent basis which
is not finally determined until the end of the year. Prior to such annual settlement,
Dove furnishes Sanford with the funds necessary to operate and the parties maintain
a running account of the money due and owing to each other.
The lease of the building which houses the Sanford plant was signed by Shenker
as president of Sanford. However, Taub, who participated in some of the lease
negotiations , and his wife personally guaranteed Sanford's performance of the terms
and conditions of the lease which has a 10-year expiration date. Practically all the
machines in the Sanford plant are Dove's and were moved from Dove's New York
plant at the latter's expense. The first shipment was made about the end of August.
According to Taub, the machines, which are valued in excess of $70,000, were
rented to Sanford with the latter orally undertaking to pay the yearly depreciation
value for the remaining 2 years of their depreciation life. It also appears that since
their transfer to Sanford the machines have been mortgaged to secure some $70,000
in loans to Sanford.
The foregoing evidence reflects but a part of the total picture revealed in the
record of the close relationship and unity of interest between Dove and Sanford.
Recital of additional facts would unnecessarily burden this report.
5. Dove offers employees jobs in the Sanford plant; the Independent supplants
Local 91; and subsequent events
On August 12, Dove sent each striking employee a registered letter, dated
August 10, advising her that "after seven months of deliberations" it had been decided
to move its plant, among other things, because of cutthroat competition from a
South Carolina company. In this letter, Dove offered the employee a job in its
plant in Sanford at the same wage rate she was earning in New York before hiring
other workers and requested her to notify Dove of her intentions no later than
August 23. This letter immediately came to the attention of Labor Representative
Orsini who discussed it at a meeting of employees. No further action was taken
by Local 91 with respect to this letter nor was there any favorable response from
any employee to Dove's offer.
Picketing continued under Local 91's direction until about the middle of October
when Local 91 was supplanted by the Independent 31 The latter organization was
formed on the advice and under the guidance of Robert Lee, secretary-treasurer of
ACTU. Thereupon, Lee prepared a document authorizing the Independent to act
as the exclusive representative of Dove's employees for collective-bargaining pur-
poses. On October 16, after the employees signed this document, Amelia Velez,
as the Independent's president, sent a telegram to Dove informing it that the Inde-
pendent represented a majority of its employees and requested a meeting to discuss
a contract. The same day, Velez, also on behalf of the Independent, filed with the
8O Shenker testified that Dove also receives mail at Sanford because "[s]ome of our
customers know us'from before as Dove Flocking and Screening Company "
a There is some conflicting testimony, unnecessary to resolve, whether Local 91 an-
nounced to the striking employees that it was pulling out of the strike because Dove dis-
continued its operations in New York, as several employees testified, or whether the em-
ployees decided on their own to replace Local 91 with another union, as Orsini indicated.
There are also other testimonial variances with respect to subsequent events which are of
no particular moment to require resolution.
DOVE FLOCKING AND SCREENING CO. 693
Board's Regional Office in New York a representation petition in Case No.
2-RC-12339. Lee testified that on the basis of the facts concerning the strike and
the happenings at the Dove plant, which the employees had related to him and which
were conveyed to counsel for ACTU, it was determined that a Board representation
proceeding was the appropriate procedure to pursue. On October 31, the Regional
Director for the Second Region dismissed this petition and, on appeal, the Board
on November 30 sustained the dismissal. Thereafter, on January 22, 1963, practi-
cally 6 months to the day from the inception of the strike, Velez, on behalf of the
Independent, filed the unfair labor practice charge against Dove. Thereafter, on
March 21, 1963, in the same capacity, she filed charges against both Dove and
Sanford.
On October 17, Lee also mailed to Dove a letter in which he enclosed a document
signed by 20 employees unconditionally requesting reinstatement to their former
jobs under the terms and conditions of employment prevailing before the strike
began. Thereafter, an additional list of six applicants for reinstatement was sub-
mitted to Dove. The evidence also discloses that on at least one occasion, if not
more, following the above-described communications to Dove, Lee and a committee
of employees visited Dove's plant in New York and requested bargaining and un-
conditional reemployment of the striking employees. Dove rejected these requests
for the reason that it was no longer operating its factory in New York and had
no vacancies in its sample department.
C. Concluding findings
1. With respect to the relationship between Dove and Sanford
During the hearing the question was raised as to whether Sanford was properly
before the Board. The General Counsel characterizes Sanford as Dove's alter ego
and therefore is a proper party, whereas the Respondents regard themselves as
separate legal entities and urge a dismissal of the amended complaint against Sanford.
From the recital earlier in this report of the facts respecting Sanford's origin and
its relationship to Dove, it is clear to me that, whether or not the General Counsel
is correct in describing Sanford as Dove's alter ego, Dove and Sanford do occupy,
at least, a single employer status for the purposes of the Act, irrespective of their
status for other purposes. The integrated nature of their operations, Sanford's
origin and its exclusive and complete dependence upon Dove for its existence, the
informal working arrangement between the parties, Dove's inherent control over all
phases of Sanford's operations which could reasonably include labor relations, the
complete family ownership of Sanford, and Dove's unaltered method of doing
business, all contribute to demonstrate that a single-employer relationship exists be-
tween the Respondents within the meaning of the Act
Accordingly, I find that Sanford is a proper and interested party before the Board
for the purpose of litigating the issues herein We now turn to a consideration of
the merits of the unfair labor practice allegations of the amended complaint.
2. With respect to alleged discrimination
It is the General Counsel's position that the record establishes that Dove violated
Section 8(a)(3) and (1) of the Act by: (a) discharging the striking employees
on July 25 because they refused to return to work and abandon their strike directed
by Local 91; and (b) thereafter transferring its New York production facilities to
North Carolina to be operated by Sanford, and thus constructively discharging the
employees, in reprisal for their said union and strike activities. The Respondents, on
the other hand, deny that the General Counsel proved his case and, in any event,
assert that the move to North Carolina was prompted by legitimate business
considerations
As for the alleged discharge on July 25, there is no factual support for this con-
tention in the record. I have heretofore found that Taub did not make the announce-
ment heavily relied upon by the General Counsel to the effect that the employees
who did not return the next day (July 26) were discharged Nor, for that matter,
was any evidence adduced that Taub refused employment in New York to any striker
before he committed himself to relocate in Sanford or moved. I therefore find no
merit in the General Counsel's argument that the strikers were discriminatorily dis-
charged on July 25.
Turning to the question of the legality of Dove's transfer of its production opera-
tions from New York to North Carolina, I also find that the General Counsel
failed to prove that the relocation was for reasons not permissible under the Act
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is too well-settled to require extended discussion that an employer may conduct
his business in a manner and location that suit his purpose so long as he does not do
so because of his employees' union or concerted activities or in order to avoid his
bargaining obligation. For this reason an employer, who is not discriminatorily
motivated, may transfer his operations to a distant area, even though a strike of his
employees for improvement of their working conditions is in progress at the time
of such move. Stated otherwise, just as an employer may permanently replace
economic strikers in order to enable him to carry on his business,32 so it necessarily
follows that he may relocate his operations for such or other legitimate business
reasons33 Whatever unfortunate impact such action by an employer may have on
his employees' organizational rights would seem, on balance, to be outweighed by
the employer's lawful interests. However, a transfer to a distant geographical
area in the context of a lawful strike unquestionably invites very careful scrutiny.
In the present case, I have found no credible evidence of antiunion bias or coercive
threats to substantiate the General Counsel's contention that Dove transferred its
production facilities to North Carolina to penalize its employees for not abandoning
their union or strike activities. On the contrary, the record indicates that the move
was made in pursuit of legitimate business considerations. As previously discussed,
Dove was beset with strike activities that prevented it from conducting its normal
operations unless it yielded to Local 91's inflexible, nonnegotiable contract demands
which it believed imposed a prohibitive cost on its business. As a consequence, it
accelerated an earlier decision to move assertedly necessitated by inroads a com-
petitor was making on its business.
Plainly, this is not a case of an employer who, upon the advent of a union and in
anticipation of unreasonable demands to be made on him, terminates or moves
his operations, without fist attempting to ascertain the union's specific demands.
In such a situation, the Board has found a violation of Section 8(a)(3) of the
Act 34 Here, however, Taub discussed Local 91's contract demands which were
vital to Dove's continuance in business with the union's representative in charge of
the strike, who made it unequivocally clear that these demands were not negotiable
matters and that Local 91 would persist in utilizing economic pressure rather than
bargain to gain their acceptance. Significantly, Local 91 did not file a
refusal-to-bargain charge nor does the amended complaint allege such an unfair
labor practice.
In the final analysis, more than the transfer of operations is required to lay the
resultant loss of employment to the strikers at the door of union hostility or a
refusal to bargain. Accordingly, as the General Counsel has failed to sustain his
burden of proving that the Respondents have discriminatorily discharged the strik-
ing employees in violation of Section 8(a) (3) and (1) of the Act, I shall recommend
the dismissal of these allegations of the amended complaint 35
3. With respect to interference, restraint, and coercion
The amended complaint alleges that Dove officials and supervisors, in violation of
Section 8 (a)(1) of the Act, made various coercive threats to discharge employees,
and to close or move Dove's plant in reprisal for the employees' union and strike
activities, as well as promises of a wage increase and to reimburse employees for
time lost while on strike in order to induce them to abandon the strike and return
to work. However, I have heretofore found no credible evidence of the alleged
sr N.L R.B . v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345.
33 Of course , if there is a union representing a majority of an employer 's employees,
settled law requires that the union be given an opportunity to bargain over the proposed
transfer or discontinuance of any of his plant operations affecting the employees.
Fibreboard Paper Products Corporation , 138 NLRB 550 , enfd sub nom. East Bay Union of
Machinists , Local 1304 , United Steelworkers of America , AFL-CIO, et at , 322 F. 2d 411
(C A D C) In the present case , no charges were ever filed against Dove by Local 91, the
incumbent union at the time of the transfer , nor does the amended complaint charge Dove
with violating such bargaining obligation.
24 See, for example , Ethel J. Hinz, As an Individual and as Executrix of the Estate of
Lester F. Hinz, d/b/a Myers Ceramic Products Co., 140 NLRB 232, which is factually
distinguishable from the present case
15 Since no jobs were available for the applicants ' for reinstatement in the New York
plant in October , no basis exists for finding a violation in the Respondent 's failure to
reemploy them there.
WOLFER PRINTING CO., INC. 695
threats. As for the alleged offer of a wage increase, I have found that it was made
to the employees but with the explanation that it had previously been offered to
their union representative and with the appeal that they try to convince their union
representative to accept it. In the context of the facts and circumstances surround-
ing the proffered raise, I find that Dove did not thereby violate the Act 36 Finally,
concerning Dove's alleged offer to reimburse employees for time lost while on strike,
I have accepted Taub's testimony that, in reply to a question by an employee as
to his intentions, Taub stated, in effect, that the money involved was of too little
consequence to prevent settlement of the matter. This, in my opinion, is not an
offer of a benefit that the Act prohibits.
In view of the foregoing, and as I have found that the General Counsel has failed
to sustain any of the unfair labor practice allegations of the amended complaint,
I shall recommend dismissal of the amended complaint in its entirety.
RECOMMENDATION
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in the case, I recommend that the amended complaint issued herein against
Israel Taub d/b/a Dove Flocking and Screening Co., and Sanford Embroidery
Company, Inc., be dismissed in its entirety.
' However, I do not base my determination on Dove's asserted justification that there was
an impasse in bargaining. It is obvious that there was never any bargaining between Dove
and Local 91 in the statutory sense of the terms, at any time.
Wolfer Printing Co., Inc. and Amalgamated Lithographers of
America, Local 22, Charging Party and Offset Workers, Print-
ing Pressmen , and Assistants' Union , Local 78, Party of Inter-
est. Case No. 31-CA-5287. December 27, 1963
DECISION AND ORDER
On September 20,1963, Trial Examiner James R. Hemingway issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached 'Trial Ex-
aminer's Decision. Thereafter, the Party of Interest filed exceptions
to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Party of Interest's exceptions and brief, and
the entire record in the case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
145 NLRB No. 70.