Dove Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 8, 1964

149 N.L.R.B. 1408 (N.L.R.B. 1964)

1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mark J. Gerry, Inc., d/b/a Dove Manufacturing Company and
Los Angeles Dress and Sportswear Joint Board , International
Ladies ' Garment Workers ' Union , AFL-CIO and Employees'
Group Union . Case No. P21-CA-5446. December 8, 1964
DECISION AND ORDER
On August 10, 1964, Trial Examiner James R. Hemingway issued
his Trial Examiner's Decision in the above-entitled proceeding, find-
ing that the Respondent 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 Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision 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 Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the Respondent's excep-
tions and its brief, and the entire record in this case, and
hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner with the following modifications, and
orders that the Respondent, its officers, agents, successors, and assigns,
shall abide by the terms of the Trial Examiner's Recommended Order
as modified below.
1. Substitute the following for paragraphs 1(a) and (b) of the
Recommended Order :
"(a) Discouraging membership in Los Angeles Dress and Sports-
wear Joint Board, International Ladies' Garment Workers' Union,
AFL-CIO, and encouraging membership in Employees' Group by
discontinuing, and by refraining and refusing to make, payment for
vacations, holidays, and bonuses except under a contract with
Employees' Group, or any other employer-assisted labor organization,
or by other discrimination with respect to the terms and conditions
of employment of its employees.
"(b) Assisting Employees' Group by discontinuing, and by
refraining and refusing to make, payment for vacations, holidays,
and bonuses except under contract with Employees' Group, or any
149 NLRB No. 132.
DOVE MANUFACTURING COMPANY 1409
other employer-assisted labor organization, or by other discrimina-
tion with respect to the terms and conditions of employment of its
employees."
2. Substitute the following for the first two paragraphs of the
Appendix attached to the Trial Examiner's Decision :
WE WILL NOT discourage membership in Los Angeles Dress and
Sportswear Joint Board, International Ladies' Garment Work-
ers' Union, AFL-CIO, or any other labor organization, and we
will not encourage membership in Employees' Group by failing
or refusing to pay for vacations, holidays, and bonuses except
under a contract with Employees' Group, or any other employer-
assisted labor organization, or by other discrimination with
respect to the terms and conditions of employment of our
employees.
WE WILL NOT assist Employees' Group by discontinuing, and
by refraining and refusing to make, payment for vacations, holi-
days, and bonuses except under a contract with Employees'
Group, or any other employer-assisted labor organization, or by
other discrimination with respect to the terms and conditions of
employment of our employees.
TRIAL EXAMINER'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Los Angeles Dress and Sportswear Joint Board , International Ladies' Garment
Workers' Union, AFL-CIO, herein called the Charging Party, on July 19, 1963,
filed a charge against Mark J . Gerry, Inc., d/b/a Dove Manufacturing Company,
herein called the Respondent , and on October 17, 1963, the Charging Party filed an
amended charge against the Respondent alleging violations of Section 8(a)(1), (2),
(3), and (4) of the Nation Labor Relations Act, as amended , 29 U.S.C. Sec. 151,
et seq ., herein called the Act. Upon the amended charge, the General Counsel of
the National Labor Relations Board , herein respectively called the General Counsel
and the Board , caused a complaint to issue on November 4, 1963. Employees' Group
Union , herein called Employees ' Group or sometimes Group Union ,1 was joined as an
interested party. The complaint was later amended and the amendment to the com-
plaint was served on the parties on January 15, 1964.
In substance , the complaint , as amended , alleged that prior to September 30, 1960,
the Respondent had a policy of granting paid vacations , paid holidays , and a yearly
bonus; that on September 30, 1960 , the Respondent entered into a collective -bargain-
ing agreement with the Group Union and from September 30, 1960, to June 27, 1963,
granted paid vacations , paid holidays , and a yearly bonus; that on June 27, 1963,
Respondent refused to grant paid vacations or paid holidays or a yearly bonus to
qualified employees ; and that the reason for such refusal was that Respondent's
employees did not join or assist the Group Union but joined and assisted Charging
Party or engaged in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection and because in certain specifically numbered prior
cases the Charging Party filed unfair - labor practice charges and a representation
petition against the Respondent on behalf of Respondent 's employees . The com-
plaint also alleges that on June 27, 1963, the Respondent told employees that paid
vacations would not be granted because a Trial Examiner of the Board had recom-
mended that the Respondent withdraw , recognition from the Group Union.
1 There is no evidence in the instant case to verify that the word "Union" is part of
the name of this organization . In, the contracts in evidence , this organization is called
simply, "Employees ' Group ." Although I refer herein to the organization by this name, I
sometimes use the designation "Group Union ," as it is called in the complaint and was
called in a previous case.
770-076-G5-vol . 149-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent's answer, filed on November 13, 1963, denied the allegations of
the unfair labor practices made in the original complaint. Respondent filed no further
answer after the amendment to the complaint issued, but at the hearing it requested
that its answer be permitted to stand to the complaint as amended. This request
was granted.
Pursuant to notice, a hearing was held before Trial Examiner James R. Hemingway
on January 20, 1964, at Los Angeles, California. The General Counsel, the Charging
Party, and the Respondent were represented by Counsel and the Group Union was
represented by its president. At the conclusion of the evidence, the Respondent made
a motion to dismiss the case on the merits. Ruling thereon was reserved and is now
denied for the reasons hereinafter stated. At the conclusion of the hearing, the parties
were afforded an opportunity to argue orally on the record, but only the Respondent
took advantage thereof. The parties requested time in which to file briefs with the
Trial Examiner and such time was granted. Thereafter, briefs were received from the
General Counsel and the Respondent.
From my observation of the witnesses and upon the entire record in the case, I
make the following:
FINDING OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is engaged in the manufacture of women's clothing in the city of
Los Angeles, California. During the year preceding the issuance of the complaint,
the Respondent, in the course and conduct of its business operations, shipped products
valued in excess of $50,000 directly to customers outside the State of California. No
issue is raised on jurisdiction. I find that the Board has jurisdiction and that it will
effectuate the policies of the Act to assert jurisdiction.
II. THE LABOR ORGANIZATIONS INVOLVED
The Charging Party and the Employees' Group are each labor organizations
admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background evidence
Under date of February 5, 1960, Respondent signed a 2-year agreement with the
Employees' Group Union which, by its terms, was automatically renewable from year
to year unless terminated at the end of the term by 60 days' written notice. This
agreement was stated therein to be between the Respondent and its employees,2
therein referred to as "Employees' Group." In this agreement, it was stated that the
bargaining agent of the Employees' Group was an Executive Committee of five
employees. Among other provisions, this agreement contained clauses covering paid
vacations, holidays, and a bonus payable on December 24 each year to qualified
employees.
After the date of this agreement, a charge was filed in Case No. 21-CA-3875 by
the Charging Party herein. That case resulted in a settlement. The settlement agree-
ment, dated March 10, 1960, provided that Respondent would post a notice, comply
with all the terms and provisions of that notice, and return to the Employees' Group
a sum of money (then being held for that organization) for pro rata return to con-
tributing employees. The General Counsel offered in evidence as a true copy of the
notice which was to be posted in compliance with the settlement agreement one which
contained, among other provisions, a paragraph reading:
WE WILL NOT enter into, renew, or give effect to any contract or understanding
with the Employees' Group, unless and until the said labor organization shall
have demonstrated its exclusive majority representative status pursuant to a
Board-conducted election.
Respondent refused to concede that this provision was contained in the four copies of
the notice actually furnished to Respondent for posting. After the notices had been
posted for 60 days, all had been destroyed. Respondent's counsel produced from his
file as the only form of notice in his possession one containing, in slightly different
wording, several of the provisions contained in the one proffered by the General
Counsel but not containing the above quoted paragraph.
2 The Employees' Group was defined as covering all employees employed in the produc-
tion, shipping, and receiving departments but excluding salesmen , clerical employees, and
management employees
DOVE MANUFACTURING COMPANY 1411
It is obvious that the terms of the settlement agreement can be ascertained (except
for one provision not here material), only to the extent that the provisions contained
in the notice were incorporated by reference into the settlement agreement . It, is,
therefore, necessary to determine which notice was, with the settlement agreement,
the integrated entire agreement, that is, whether the settlement agreement and the
notice proffered by the General Counsel or the settlement agreement and the notice
produced by Respondent's counsel from his file constituted the actual whole agree-
ment. Numerous staple holes in the notice and in the settlement agreement tendered
by the General Counsel made it impossible to find that the two sheets were part of
one integrated writing stapled together from the time of execution.
To prove that the notice relied on by the General Counsel was the same as those
posted, the General Counsel adduced evidence tending to create an inference that
that notice was in fact the same as the ones furnished in March 1960 to the Respondent.
This evidence consisted of proof that the Charging Party had received from the Board
copies of the same documents as that offered by the Board as the ones sent to the
Respondent. The copies from the file of the Charging Party were the same as those
proffered by the General Counsel, but they, likewise, showed staple holes indicating
more than one stapling. Sam Schwartz, organizer for the Charging Party, testified,
however, that the form of notice from the Charging Party's file was, in fact, the one
he had received from the Board in the mail with the copy of the settlement agreement
and covering letter.
The notice proffered by Respondent from the files of its attorney as the one posted
was worded as is customary where "domination" as well as "interference with the
formation" of a labor organization is found, whereas that proffered by the General
Counsel and the one produced by the Charging Party were worded as in a case where
no domination is found. The one proffered by Respondent appears to have been typed
on the same typewritter as that used for typing the notice proffered by the General
Counsel, and I infer that it had been prepared by the Regional Office.
The General Counsel also adduced evidence to show that Respondent's counsel had,
on March 8, 1960, signed a memorandum addressed to the Board's Regional Director,
in which he agreed on behalf of Respondent, to accept, as a settlement, the language
of the order in Dixie Bedding Manufacturing Company, 121 NLRB 189. The Board's
order in that case, while not containing other provisions in exactly the same language
or order of paragraphs as shown in the General Counsel's proffered notice, did contain
one paragraph which, but for the name of the labor organization involved, was
worded exactly as in the disputed paragraph quoted above. I conclude that the
above-quoted paragraph from the notice proffered by the General Counsel was the
one taken from the Order in the Dixie Bedding case by agreement of the parties.
The General Counsel further adduced evidence to show that on March 8, 1960, the
same date as that of the memorandum above mentioned, Respondent's counsel
addressed to the Regional Office of the Board a letter enclosing a form of notice
intended by Respondent to be attached to each employee's pay check following the
making of the settlement agreement. The form enclosed was a notice beginning,
"Effective as of January 1, 1960, all employees in the Production, Shipping and
Receiving Departments shall receive the following benefits." Following this intro-
duction, the benefits were listed, and they were almost word for word the same as
those contained in the aforementioned agreement of February 5, 1960.3 In the letter
of Respondent's counsel to the Board's Regional Office accompanying this notice, he
asked if the Board's Regional Office had any suggestions to make. Under date of
March 15, 1960, the Regional Director wrote a reply informing Respondent's counsel
that it could not give advisory opinions and that "any action taken by your client in
advising its employees of benefits, etc., must be taken with full realization that such
action may be the subject of an unfair labor practice charge or may reflect adversely
upon your client's compliance with the settlement agreement which it entered." In
the face of this caution, Respondent did enclose copies of that message in the em-
ployees' pay envelopes and did continue paid vacations and holidays.
In September 1960 the Employees' Group,' as a result of a Board-conducted election
held during that month, in which both the Employees' Group and the Charging Party
were on the ballot, received a majority of the votes cast and was certified as the
3 There was a difference in the commencement date as of which an employee with
3 years' service would qualify for 2 weeks' vacation. This was actually more favorable
to the employee than before by 6 months. Although the language appears to me to be
ambiguous, I deduce that it was intended to grant a 2-week vacation with pay to em-
ployees who had completed 3 years of continuous employment by January 1, 1960, as
stated in the contract, or by June 1, 1960, as stated in the notice.
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective -bargaining representative of the employees in a unit found by the Board to
be appropriate .4 Under date of September 30, 1960, the Respondent and the
Employees' Group executed a collective -bargaining agreement providing the same
identical benefits as those in the agreement of February 5.5
The agreement of September 30, 1960, was , like the earlier one , for a 2-year term,
with automatic renewals of 1 year, terminable at the end of any term by 60-day
written notice given by either party . This agreement was still extant in March 1963,
when a hearing was conducted on charges of unfair labor practice (Cases Nos.
21-CA-5008-1, 21-CA-5008-2, 21-CA-5125) and on objections to an election
which had been conducted in October 1962 (21-RC-7890) [145 NLRB 13791. The
Charging Party in that case was the same as in the instant case. Among other issues
raised by the complaint in that case was one under Section 8(a) (2) of the Act. Trial
Examiner Doyle issued his Intermediate Report on June 24 , 1963 , in which he found,
among other things , that the Respondent had interfered with the administration of,
and unlawfully assisted , the Employees ' Group Union . He recommended, in addition
to other things , that Respondent cease and desist from giving effect to any and all
contracts or agreements with said labor organization unless and until it had demon-
strated its exclusive representative status in a Board -conducted election . The Respond-
ent duly filed exceptions to Trial Examiner Doyle's decision . The Board 's Decision
and Order, adopting Trial Examiner Doyle 's findings , conclusions , and recommenda-
tions, was issued on January 30, 1964, after the close of the hearing in the instant
case.6
B. Respondent 's termination of employee benefits
On June 24, 1963, a notice was posted by the Respondent on the bulletin board.
This notice stated that all employees eligible for a 2 weeks' vacation would be given
1 week pay the first week of July and the second week with pay beginning Novem-
ber 15, 1963. This notice was posted on the same day on which Trial Examiner
Doyle's Intermediate Report issued but presumably before it was actually received by
Respondent . On June 27, 1963 , after the lunch period , Burton Koch , the Respond-
ent's production manager, having received the Trial Examiner 's Intermediate Report,
summoned to his office seven employees who were either officers or active members of
the Employees ' Group .7 In Koch 's office also were Bernard Mangel , now Respond-
ent's vice president ( in 1960 assistant to the president ), and Mark Gerry, owner of
Respondent . Koch told the employees that the Respondent had heard from "their"
attorney about Trial Examiner Doyle's decision , according to which the Respondent
was required to cease recognizing the Employees' Group and cease giving effect to
the contracts He said that they were going to appeal the decision . He told them
that the vacation checks were already being prepared (they were actually to have been
distributed on the following day ) but that now they did not know what to do. Gerry
said that they were going to talk with their attorney and see what he had to say and
that they were going to follow his advice . Koch told them that they should not spread
the word right then because he did not want anyone to get alarmed , that there was no
certainty as of that moment. Briley asked when they would get their vacation in the
event that Respondent was advised by Laven not to give it then . According to
Briley,° Koch replied that the Respondent would appeal the Trial Examiner 's decision
and that when everything was "settled with the Board ," they would get their "retro-
active bonus or vacation , whatever it would be."
'The unit is defined in Mark J. Gerry, Inc. d/b/a Dove Manufacturing Company,
128 NLRB 778.
c Whereas the February 5 agreement was signed by all the employees covered, the
September 30 agreement was signed by the executive committee of the Employees' Group
"Enforcement proceedings have not yet reached the court of appeals , but since the
case is listed for enforcement , I judge that the Respondent has failed to comply with the
Board's Decision and Order
7 The seven were* Theola Luster, an adviser ( not an officer , .,but her signature as a
member of the executive committee appears on the September 30, 1960 , contract)
Hortense Baker , secretary-treasurer ; Edgar Casata , vice president ; Virrice Lumbard
(Lombert' ), an adviser ; Galley Edmundson , an'active member ; Susie Lee, used by the
Employees ' Group as a , translator for the Chinese employees ; and Mary Briley , president.
The only officer of the Employees ' Group not present was Lydia ,Mullins , found by the
Board in 145 NLRB 1379 to be a supervisor
BThese findings are based on the testimony of Briley , who was obviously unfamiliar
with technical words. I have ' therefore couched my findings in terminology . more con-
sistent with customary phraseology in labor relations law.
9 Koch did not testify: ' ! ' `
,
' I '
DOVE MANUFACTURING COMPANY 1413
A few minutes before the 2 : 30 p.m . coffee break that same day , Koch went to
Briley where she was conversing with Luster and said that he had spoken with "his"
lawyer (Laven ), that until further notice there would be no vacation with pay, and
that the Respondent was going to appeal to the Board . In the lunchroom , during the
coffee break, Briley told the employees there (the evidence is not clear as to whether
or not she assembled all the employees or merely passed the information on to some
who were present or were near her ) that she had gotten word from Koch that as a
result of the Trial Examiner 's recommendations , there would be no vacation with pay
until further notice and that the Respondent was going to appeal .1° Briley did not
testify that she had told employees that , when the matter was all settled with the
Board , they would get their retroactive bonus or vacation . In a passing remark made
later the same day, Briley sarcastically told a proponent of the Charging Party:
"You did a beautiful job. Thank you." However , there is no evidence that this
remark was overheard by any representative of management or that it was prompted
by management.
Between 2 : 30 and 4 : 00 p.m . on the same day, June 27, 1963 , the Respondent posted
a notice to the effect that as a result of the Board proceedings (Briley used the word
"hearing" ) there would be no vacation pay until further notice."
Sadie Jones ( formerly Zedd ), a proponent of the Charging Party , on or about
July 9 , 1963, asked Koch why they were not getting their vacation pay. Koch replied,
according to Jones, "Oh , no. It is all tied up in Washington...." Koch , likewise,
said nothing to Jones (or to any but the officers and active members of the Employees'
Group who were in his office on June 27, 1963 , so far as appears ) about the possibility
of retroactive vacation pay.
Following June 27, 1963 , the Respondent has given no vacations or holidays with
pay and has given no bonus to employees in the bargaining unit.
C. Arguments and conclusions
The complaint , as amended , alleges, and the answer denies, that Respondent on and
after June 27, 1963 , refused to grant paid vacations , holidays, and yearly bonus to
qualified employees "because Respondent 's employees did not join or assist the Group
Union but joined and assisted" the Charging Party or engaged in other concerted
activities for the purposes of collective bargaining or other mutual aid or protection
and because the Charging Party had filed unfair labor practice charges and a repre-
sentative petition in Cases Nos. 21 -CA-5008-1, 21-CA-5008-2, 21-CA-5125, and
21-RC-7890 (which resulted in Trial Examiner Doyle 's Intermediate Report and
later the Board 's Decision and Order , as reported in 135 NLRB 1379 ). This was
alleged to constitute a violation of Section 8(a)(1), (2 ), (3), and (4) of the Act.
The complaint alleges as a violation of Section 8(a)(2) of the Act, also , Manager
Koch 's statement to employees "that paid vacations would not be granted because a
Trial Examiner of the . . . Board had recommended that Respondent withdraw recog-
nition from the Group Union."
"An objection was made to the General Counsel 's question of the witness Briley as to
what she had told other employees , on the ground that Briley 's statement was not bind-
ing on the Respondent . I ruled that I would not take the testimony as a statement
binding on the Respondent but I permitted the General Counsel ( who argued that Briley
was an agent of Respondent in giving the information to other employees ) to ask ques-
tions and get answers from the witness as an offer of proof, which I then rejected as
proof if Briley' s statements were offered as statements binding on Respondent. As it
turned out , the Respondent , itself , put on no witnesses to prove that Briley had in-
accurately quoted Koch Mangel was in the hearing room and testified briefly for the
General Counsel on another point , but Respondent did not call him as a witness , itself ;
so Briley's testimony of what Koch told her and other members of the Employees' Group
in his office is undenied . Since Briley did not, in the lunchroom , say more than she had
been told by Koch, I see no reason for excluding the evidence of what she told the em-
ployees I therefore clarify my ruling by stating here that, although I am not finding
Briley to have been an agent of Respondent , the offer of proof is received for all other
purposes, and I rely on her testimony to show the extent to which the employees gen-
erally were informed of the Respondent 's decision From the evidence, I infer that
Koch contemplated that Briley would tell the other employees of Respondent 's decision
to withhold the vacation pay. -
"The Respondent did not produce the notice and the only evidence of the language
thereof came from testimony of Briley , the preciseness of which is open to question. I
Infer that , the notice referred to the recommendations of Trial Examiner Doyle rather
than to the hearing
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is the Respondent's position that it withheld vacation and holiday pay and year-
end bonus because it was advised by counsel 12 that it was required by the Recommen-
dations of Trial Examiner Doyle to cease and desist from giving effect to the contract
between the Respondent and the Employees Group and that, in the absence of a con-
tract, Respondent had no policy or practice of giving paid vacations, holdiays or a
yearend bonus. Thus, argues the Respondent, it returned to conditions which pre-
vailed before the vacations, holidays, and bonus were granted pursuant to a contract.
The General Counsel answers the Respondent's first contention by saying that,
although Trial Examiner Doyle did recommend that Respondent cease giving effect to
the aforesaid contract, a reference to that section of the Trial Examiner's Inter-
mediate Report entitled, "The Remedy," would have convinced an employer who was
acting in good faith that ceasing to give effect to the contract did not mean that
Respondent had to "vary the wages, hours, or other conditions of employment here-
tofore established." With respect to Respondent's position that the Respondent, in
the absence of a contract, had no policy or practice of giving paid vacations, holidays,
or yearend bonus, the General Counsel points to the notice issued by the Respondent
in March 1960, by which the Respondent continued without contract, the employees'
wages, hours, vacations, holidays, and yearend bonus as established by the February 5,
1960, contract, although, by the terms of the settlement agreement, Respondent was
obligated to cease giving effect to that contract. From this, the General Counsel
reasons, the Respondent's conduct after June 27, 1963, because it varied from its
conduct following March 10, 1960, the date of the settlement agreement, demon-
strated bad faith and a discriminatory intent. Respondent sought to escape such
inference by asserting that the terms of the 1960 settlement agreement did not (as
did the Trial Examiner's recommendations) require a discontinuance of the provisions
of the contract.
I have already related the evidence concerning the disputed notice and, hence, the
disputed terms of the settlement agreement. From all the evidence, I conclude and
find that the settlement agreement did, as one of its terms, require Respondent to cease
giving effect to the February 5, 1960, contract. Had the parties not contemplated
that the February 5, 1960, contract be set aside, there would have been no reason for
the Respondent to prepare and give to employees in March 1960 a special notice listing
benefits to be thereafter received by the employees. If any notice had been deemed
necessary at that time in the absence of a setting aside of the contract, the Respondent
need only have told the employees that the terms of the February 5, 1960, contract
would continue in effect. On the contrary, the notice of March 8, 1960, takes on the
appearance of a substitute for the contract, thus indicating that the contract, itself,
was voided.
The Respondent took the position that Trial Examiner Doyle's recommended order
required the Respondent to cease giving the benefits provided under the contract of
September 30, 1960. The Respondent was mistaken in assuming that a continuance of
vacation, holiday, and bonus benefits would actually have been a continuance of the
contract and would have been considered by the Board as an encouragement of
employees to favor the Employees' Group as against the Charging Party. As stated
by Trial Examiner Doyle, whose decision and recommended order was adopted by
the Board in its entirety, the recommended order did not (as is revealed by a reading
of the section entitled "The Remedy") require Respondent to vary the wages, hours,
and working conditions theretofore in existence. The Respondent was free to con-
tinue such conditions, not as a contract obligation, but as the terms under which
it voluntarily chose to operate. On the other hand, in the absence of a discrimina-
tory intent or an indication of interference with rights guaranteed under the Act,
the Respondent may not have been obliged to continue the same terms and condi-
tions of employment but might have made changes in terms and conditions of employ-
ment. But there are indications here that the Respondent sought to take advantage of
the situation to discourage employees' support of the Charging Party.13 I observe
12 The General Counsel argues that there is no evidence that the Respondent relied on
advice of counsel because Laven, when called as a witness by the General Counsel an-
nounced (before he was asked any questions) that he relied on the attorney-client privi-
lege As the evidence stands, it shows only that the Respondent told some employees
that it was going to follow counsel's advice in the matter of vacation pay and that Koch
told Briley that Respondent was acting thereon.
13 As previously stated, the General Counsel, in his brief, points out that there was no
actual evidence that Respondent's counsel had so advised Respondent or that Respondent
had relied thereon, if one eliminated statements of Respondent's counsel on the record
as not evidence. Otherwise the evidence reveals merely that Respondent told some of
its employees that it would or was relying on such advice
DOVE MANUFACTURING COMPANY 1415
that the Respondent apparently continued some of the terms that were contained in the
contract, to wit, those dealing with loans to employees, hours of work, rates of pay,
facilities for music during hours of employment and coffee breaks. It was not shown
that such benefits had been in effect before February 5, 1960, rather than that they
were granted only as a result of the contracts with the Employees' Group. If they
were, then, to carry the Respondent's argument to its logical conclusion, these benefits
likewise should have been taken away.
The Respondent takes the position that the Trial Examiner's recommended order
was ambiguous and that even the qualification in the section entitled "The Remedy"
in Trial Examiner Doyle's decision did not remove the ambiguity, thus urging that
Respondent had to wait for a clarification. The sentence in question reads: "However,
the Respondent is not hereby required to vary the wages, hours, or other conditions of
employment heretofore established." , In view of the now settled state of the law, I
do not find any basis for a claim of ambiguity in the words "other conditions of
employment." 14 Perhaps the added words "heretofore established" could, arguably,
be capable of a misunderstanding, since those words could mean "heretofore estab-
lished as a result of said contract" or they could mean "heretofore established by the
employer as a matter of policy and practice independently of the contract." 15
Nevertheless, there is a basic flaw in the Respondent's contention that it was discon-
tinuing vacations, holidays, and bonuses because the recommended order required it
to or because the wording therein was ambiguous. This flaw is that the Respondent
apparently had no intention of complying with the Trial Examiner's recommended
order or it would not have filed exceptions to the Intermediate Report. Looking at
the situation as it then existed, nothing was to be gained by allegedly complying, only
in part, with the recommended order and refusing to comply with the rest. For in
the event of a reversal of the Trial Examiner's Intermediate Report, the Respondent
would have been vindicated in its position that it should be allowed to continue the
contract and its terms. But in the event that the Board should adopt the Trial
Examiner's decision, the Respondent would be no worse off as a result of having
continued to give effect to the contract, thus continuing the contract benefits. No
accumulating obligations were to be avoided by complying in part with the recom-
mended order (by discontinuing the contract and contract benefits) but refusing to
comply with and balance, including the posting of the required notice and notification
of the Regional Director. In fact, the Respondent's risk would have been just the
contrary, for, if it should later be found here that the Respondent withheld vacation
and holiday pay and bonuses discriminatorily, the Respondent stood to lose by having
to pay not only those sums of money but also interest on the sums withheld. I have
taken official notice of the fact that Respondent's inconsistency in taking the position
that the Trial Examiner (and now presumably the Board, too) had no legal basis for
saying that the September 30, 1960, contract, as extended, should be set aside, while
at the same time asserting that it discontinued said vacations, paid holidays, and
bonuses, payable under the contract because the Trial Examiner's recommended order
required it to, vitiates the Respondent's justification for discontinuing those benefits.
Respondent's unremedied unfair labor practices found by the Board in its decision
in 145 NLRB 1379 furnish a background which colors the Respondent's motive in
this case. Its disposition to favor the Employees' Group, its lack of a sound reason for
depriving employees of their vacation pay, holiday pay, and bonuses, its conduct in
informing representatives of the Employees' Group that, when the matter before the
Board was ultimately settled, they would receive retroactive vacation pay while keeping
silent on this score in its communications to employees not favoring the Employees'
Group, and all other evidence herein related, combine to portray the Respondent's
conduct as designed to make the employees who favored the Charging Party as a
bargaining representative believe that it was their support of that labor organization
that had caused them to be deprived of benefits previously enjoyed. The attempt to
put the blame on the Charging Party for filing the charges which resulted in Trial
Examiner Doyle's recommended order and its pretending to its employees to be com-
plying with such recommended order while actually refusing to comply with it dis-
closes a well-calculated purpose to discourage membership in the Charging Party and
to encourage membership in the Employees' Group. By withholding from its employ-
14 It is now settled law that included in conditions of employment are vacations and
holidays, employees ' bonuses, pensions , and insurance plans. Inland Steel Company v.
N L R B., 170 F. 2d 247 (C.A. 7) ; W. W. Cross and Company, Inc v. N L R.B., 174 Jr. 2d
875 (C.A. 1) ; N.L.R B. v. Niles-Bement -Pond Company , 199 F. 2d 713 ( CA. 2) ; Mason
d Hughes, Inc, 86 NLRB 848; Whitinsville Spinning Ring Company , 97 NLRB 801.
15 Cf. Gay- Gibbon, Inc , 147 NLRB 1452 , and Universal Food Service, Inc, 104 NLRB 1
at 19, for customary language.
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees such vacation pay, paid holidays, and bonuses, I find, Respondent has committed
unfair labor practices within the meaning of Section 8(a)(1), (2), and (3) of the
Act. With respect to Section 8(a)(4), I note that the employees were not the ones
who filed the charge. Respondent's conduct may have discriminated against employ-
ees because the Charging Party had filed charges; but not because they had filed
charges. It is unnecessary, however, to decide here whether or not the charge filed by
the Charging Party might, under Section 8(a)(4) of the Act, be deemed to be a
charge filed by employees and so within the terms of that subsection, since the unfair
labor practices may be adequately remedied under the subsections enumerated above.
Although the complaint alleges that the Respondent violated Section 8 (a) (1) and
(2) of the Act by telling "employees that paid vacations would not be granted because
a Trial Examiner of the National Labor Relations Board had recommended that
Respondent withdraw recognition from the Group Union," the evidence was somewhat
at variance. The Respondent rather verbally told a group of employees who were sup-
porters of the Employees' Group, in substance, that management was in doubt as to
the meaning of the recommended order with respect to vacation pay (which was due
to be paid the next day) ; that they were going to appeal; and that, on advice of counsel,
Respondent would not pay that money (apparently pay for vacation was given in
advance) until further notice. According to Briley, president of the Employees'
Group, a notice was posted later which, she testified, stated that "as a result of the
hearing we had received from the Labor Board, there would be no vacation pay until
further notice." I am doubtful that the notice contained the word "hearing" rather
than "Trial Examiner's recommendations" or the equivalent, but I am convinced and
find that the Respondent did not explain, in detail, in the notice what it had told the
group of representatives of the Employees' Group. The result was to cause most of
the employees to believe that the Charging Party had caused them to lose their vaca-
tion pay. I have taken this into account in reaching my conclusions, stated above,
that Respondent committed unfair labor practices within the meaning of Section 8(a)
(1), (2), and (3) of the Act, but I do not find that the allegation of the complaint,
first above quoted, was proved.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connec-
tion with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and constitute unfair labor practices tending to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
In addition to the customary cease-and-desist order, I find that, in order to effectuate
the policies of the Act, the Respondent should restore the employees to the same situa-
tion they would have been in had the Respondent not, by discriminating in regard to
the terms and conditions of employment , discouraged membership in one labor organi-
zation , and encouraged membership in another ,16 thereby depriving its employees of
benefits which, even in the absence of a contract, Respondent would have continued
(as it had, in 1960), absent the intent to discourage membership in and activity and
support on behalf of the Charging Party. I shall therefore recommend an order that
Respondent make whole its employees who were in its employ on or after June 27,
1963, for any loss they may have suffered as a result of Respondent's discriminatory
conduct by paying to each qualified employee an amount equal to that which would
have been paid to such employee for vacation, holiday, or bonus, plus interest on the
amount of any sum withheld, such interest to be at the rate of 6 percent per annum in
accordance with the practice established by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the foregoing findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. Mark J . Gerry, Inc., doing business as Dove Manufacturing Company, is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
1e It is not essential that the result of an unfair labor practice be to deprive all em-
ployees,'rather than just advocates of the outside union , of benefits In order to find dis-
crimination as to all and to extend the remedy to all J B Wood, an individ-nal, d/b/a
Wood Manufacturing Company, 95 NLRB 633 at 641 ;'The American Rolling Mill Com-
pany, 43 NLRB 1020 at 1149
DOVE MANUFACTURING COMPANY 1417
- 2. Los Angeles Dress and Sportswear Joint Board, International Ladies' Garment
Workers' Union, AFL-CIO, and Employees' Group, sometimes called Employees'
Group Union, are labor organizations within the meaning of Section 2(5) of the Act.
3. By discriminating in regard to the terms and conditions of employment of its
employees thereby discouraging membership in Los Angeles Dress and Sportswear
Joint Board, International Ladies' Garment Workers' Union, AFL-CIO, and encourag-
ing membership in Employees' Group, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the Act.
4. By causing employees to believe that the Charging Party, through the processes
of the Board, caused Respondent's employees to lose benefits previously paid by
Respondent and to believe that only through a contract between Respondent and
Employees' Group could they receive such benefits, Respondent has assisted Employ-
ees' Group within the meaning of Section 8(a)(2) of the Act.
5. By the conduct described in Conclusions of Law 3 and 4 hereof, the Respondent
has interfered with, restrained, and coerced, its employees in the exercise of rights
guaranteed in Section 7 of the Act, within the meaning of Section 8(a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not committed unfair labor practices within the meaning of
Section 8 (a) (4) of the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon the
entire record in the case, I recommend that the Respondent, Mark J. Gerry, Inc.,
doing business as Dove Manufacturing Company; its officers, agents , successors, and
assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Los Angeles Dress and Sportswear Joint Board,
International Ladies' Garment Workers' Union, AFL-CIO, and encouraging mem-
bership in Employees' Group by discontinuing , and by refraining and refusing, to
make payment for vacations, holidays, and bonuses except under a contract with
Employees' Group, or any other employer-assisted labor organization, thereby dis-
criminating in regard to the terms and conditions of employment of its employees.
(b) Assisting Employees' Group by causing employees to believe that the termina-
tion of benefits previously enjoyed by them was occasioned or required by the recom-
mendations or recommended order of a Trial Examiner or order of the Board which
directs Respondent to cease giving effect to a contract between Respondent and an
assisted labor organization , or by causing employees to believe that they can enjoy
such benefits only on condition that they are provided for in a contract between
Respondent and Employees' Group or other assisted labor organization.
(c) In any like or related manner interfering with , restraining , or coercing employ-
ees in the exercise of their right to self -organization , to form labor organizations, to
join or assist Los Angeles Dress and Sportswear Joint Board, International Ladies'
Garment Workers' Union, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action, which, it is found, will effectuate the
policies of the Act:
(a) Make whole each of its employees who may have suffered any loss as a result
of Respondent's unfair labor practices by paying to each qualified employee in its
employ on or after June 27, 1963, the amount that, in the absence of the Respondent's
unfair labor practices, such employees would have been entitled to, whether by way
of vacation pay, holiday pay, or bonus, or all of them, plus interest at the rate of 6
percent - per annum on such sum or sums from the due date of such sums until the
date of payment.
(b) Post at its place of business in Los Angeles, California, copies of the attached
notice marked "Appendix." 17 Copies of said notice, to be furnished by the Regional
17 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner'" in the notice In the further event that the Board's Order be enforced
.by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director for Region 21, shall, after having been duly signed by an authorized repre-
sentative of the Respondent, be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 21, in Decision and Recommended
Order, what steps Respondent has taken to comply herewith.ls
It is further recommended that, unless Respondent shall, within 20 days from the
date of receipt of this Decision and Recommended Order, have notified said Regional
Director, in writing, that it will comply herewith, the National Labor Relations Board
issue an order requiring the Respondent to take the action aforesaid.
It is recommended that the complaint be dismissed insofar as its alleges a violation
of Section 8(a) (4) of the Act.
18 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Act, as amended, we
hereby notify our employees that:
WE WILL NOT discourage membership in Los Angeles Dress and Sportswear
Joint Board, International Ladies' Garment Workers' Union, AFL-CIO, or any
other labor organization, and we will not encourage membership in Employees'
Group by failing or refusing to pay for vacations, holidays, and bonuses except
under a contract with Employees' Group or another assisted labor organization.
WE WILL NOT assist Employees' Group by leading employees to believe that
they have been deprived of benefits previously enjoyed because a contract between
us and Employees' Group was terminated as a result of the decision of a Trial
Examiner or of the said Board.
WE WILL NOT, in any like or related manner, interfere with, restrain or coerce
our employees in the exercise of the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of their
own choosing, or to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities except to the extent that such right may be affected by an agree-
ment requiring membership in labor organization as a condition of employment
as authorized in Section 8(a)(3) of the National Labor Relations Act, as
amended.
WE ARE NOT prohibited by the National Labor Relations Board from giving
you paid vacations, holidays, or bonuses in the absence of a contract between us
and Employees' Group.
WE WILL pay to qualified employees who were in our employ on or after
June 27, 1963, the amount of pay for vacations, holidays, and bonus to which
they would have been entitled under employment conditions existing continuously
since February 1960, together with interest thereon at the rate of 6 percent per
annum from the due date thereof until paid.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of Los Angeles Dress and Sportswear Joint Board, International
Ladies' Garment Workers' Union, AFL-CIO, or Employees' Group, or any other
labor organization.
MARK J. GERRY D/B/A DOVE MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5206, if they have any ques-
tion concerning this notice or compliance with its provisions.